Citation Nr: 20021655 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-49 996A DATE: March 26, 2020 ORDER A disability rating higher than 30 percent for posttraumatic stress disorder (PTSD) prior to September 5, 2018, and a disability rating higher than 70 percent, thereafter, is denied. A total disability rating based on individual unemployability (TDIU) prior to September 5, 2018 is denied. FINDINGS OF FACT 1. Prior to September 5, 2018, the Veteran’s PTSD was manifested by symptomatology that more nearly approximated the rating criteria of a 30 percent disability rating. 2. Since September 5, 2018, the Veteran’s PTSD has been manifested by symptomatology that more nearly approximates the rating criteria of a 70 percent disability rating. 3. The Veteran’s service-connected disabilities did not preclude him from obtaining and sustaining substantially gainful employment prior to September 5, 2018. CONCLUSIONS OF LAW 1. Prior to September 5, 2018, the criteria for a disability rating higher than 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. From September 5, 2018, the criteria for a disability rating higher than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The preponderance of the evidence is against the assignment of a TDIU prior to September 5, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marines on active duty from May 1973 to December 1975. 1. Increased Disability Ratings for PTSD Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Veteran’s mental health disability is evaluated pursuant to the General Rating Formula for Mental Disorders. Regarding the rating criteria, a veteran may be assigned disability ratings of zero percent, 10 percent, 30 percent, 50 percent, 70 percent and 100 percent for his/her mental health disability depending on evidence of severity of symptomatology. In a March 2013 decision, the RO granted service connection for PTSD and assigned a 30 percent disability rating effective January 30, 2012. In September 2014, the Veteran sought an increased PTSD disability rating. In a January 2015 rating decision, the RO confirmed and continued the assignment of a 30 percent rating. In August 2015, the Veteran submitted a notice of disagreement in which he requested the assignment of a 70 percent rating for his PTSD. Additional evidence was subsequently associated with the claims file. In a September 2018 rating decision, the RO increased the Veteran’s disability rating from 30 percent to 70 percent effective September 5, 2018. Thus, the initial analysis of the Veteran’s appeal focuses on whether the Veteran is entitled to a PTSD disability rating higher than 30 percent prior to September 5, 2018. The Board must then determine if the evidence warrants the assignment of a 100 percent disability rating after September 5, 2018. September 13, 2014, to September 5, 2018 In the January 2013 rating decision referenced above, the RO denied the Veteran a disability rating higher than 30 percent for his PTSD. Pursuant to the General Rating Formula cited above, the Veteran’s mental health disability may be continued at 30 percent, or be assigned increased ratings of 50 percent, 70 percent and 100 percent. To warrant the assignment of a 50 percent disability rating (the next higher evaluation), the evidence must show that a veteran suffers from occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and-long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Evidence in this case includes a November 2014 Disability Benefits Questionnaire (DBQ) report detailing a psychological evaluation of the Veteran. At the time of the examination, a psychologist reviewed the claims file, obtained a medical history from the Veteran, and conducted a psychological examination. He ultimately diagnosed the Veteran with PTSD. The examination report documents the Veteran as living in a VA Medical Care domiciliary as part of VA’s homeless program while participating in an IT program. The Veteran was noted as being stable, and hopeful of having his own apartment prior to leaving the domiciliary. He was taking his prescribed mental health medication. A visual examination of the Veteran found him to be neatly dressed, alert and oriented, with fair eye contact, and in no acute distress. For rating purposes, the Veteran’s symptoms were documented as anxiety, chronic sleep impairment, and disturbances of motivation and mood. The psychologist found no other symptoms attributable to the Veteran’s PTSD. In terms of occupational and social impairment, the psychologist opined that mild or transient symptoms decreased the Veteran’s work efficiency and ability to perform occupational tasks but only during periods of significant stress. Based upon the foregoing, the RO continued to assign a 30 percent disability rating in the rating decision on appeal. Post-service medical records support the November 2014 examination findings. Specifically, mental status examinations dated between 2014 and 2016 reveal that the Veteran was consistently alert and oriented. He was appropriately well-groomed, friendly, cooperative, and had good eye contact. His affect was described over the duration of several examinations as bright/appropriate/pleasant and fluently conversant. The Veteran’s mood was described as euthymic, appropriate, and anxious. His speech was clear. He had normal motor activity. The Veteran’s thoughts were logical, relevant, and coherent, and his judgment and insight were intact. His medical providers found no memory problems and reported that he had age appropriate attention and judgment. The Veteran’s impulse control was found to be within normal limits. The Veteran denied suicidal or homicidal thoughts. A July 2018 medical record reflects that the Veteran had not been seen by his VA psychiatrist for the previous two years. In this regard, while there are two medical records dated in June 2017 and August 2017 that note the Veteran as being alert, oriented, well groomed, in no acute distress, and with an appropriate mood and affect, these comments were made in the context of a physical examination report and an optometry clinic record. In July 2018, the Veteran was found to be awake, alert, and oriented. He was cooperative and well-groomed. His thought processes were goal-directed and linear; with logical thought content. His insight and judgment were estimated to be fair. No psychomotor abnormalities were noted. The Veteran’s eye contact was engaged. His speech was clear. His mood was anxious, with his affect congruent to mood. The Veteran again denied homicidal or suicidal thoughts. After considering the available evidence, the Board finds that the Veteran’s mental health symptomatology prior to September 5, 2018 more closely resembles the criteria that would be assigned to someone whose psychiatric disorder was 30 percent disabling rather than 50 percent disabling. For example, prior to September 5, 2018, the Veteran was never found to have speech that was circumstantial, circumlocutory, or stereotyped. There is no evidence that he had any difficulty in understanding complex commands or that he suffered from memory impairment. The records do not reference the Veteran having panic attacks, much less attacks that occurred more than once a week. In other words, prior to September 5, 2018, the Veteran’s mental health symptoms were of a similar duration, severity, frequency, and type as those associated with a 30 percent rating. Although the Veteran may have had some of the symptoms associated with a 50 percent rating prior to September 5, 2018, such as disturbances of motivation and mood, the most probative evidence does not show that he suffered from occupational and social impairment with reduced reliability and productivity as a result of his mental health disability. Prior to September 5, 2018, his disability picture more nearly approximated a 30 percent rating. As such, a disability rating higher than 30 percent prior to September 5, 2018, is denied. September 5, 2018, to the present The Veteran was afforded a September 2018 VA examination. According to a Disability Benefits Questionnaire (DBQ) report, the Veteran’s mental health disability had significantly worsened. Subsequently, the RO increased the Veteran’s disability rating to 70 percent based upon a findings of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; suspiciousness; depressed mood; disturbances of motivation and mood; impaired judgment; mild memory loss; chronic sleep impairment; near-continuous panic affecting the ability to function independently, appropriately and effectively; difficulty in adapting to stressful circumstances; flattened affect; anxiety; difficulty in establishing and maintaining effective work and social relationships; and an intermittent inability to perform activities of daily living. Thereafter, the Veteran underwent another VA examination in April 2019 by the same September 2018 psychologist. At that time, he was found to have total occupational and social impairment. The psychologist observed the Veteran as having a somber expression. He was reported as being alert, awake, and focused. The Veteran’s attitude was reported as being calm and cooperative. He was oriented to person, place, and time. She described his mood as anxious, with a mood congruent affect. No unusual psychomotor movements or behaviors were noted. The Veteran’s speech was reported as being normal in volume, tone and rate. He had good enunciation quality. His thinking was logical, and goal directed. The psychologist’s observable cognitive function suggested the Veteran had an average capacity in domain of executive function. She found no psychotic thoughts, and no suicidal or homicidal ideation. She noted that no hallucinations or delusions were reported by the Veteran. Contrary to a great deal of the evidence elicited during the Veteran’s mental status examination, the April 2019 psychologist reported that the Veteran’s PTSD symptoms consisted of depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short-and-long-term memory (for example, retention of only highly learned material, while forgetting to complete tasks); impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; an inability to establish and maintain effective relationships; obsessional rituals which interfered with routine activities; spatial disorientation; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In order for the Veteran to be assigned a 100 percent disability rating, the evidence would need to show total occupational and total social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Although the April 2019 psychologist opined that the Veteran suffers from complete occupational and social impairment, the Board’s review of the overall evidence reveals that many of the Veteran’s 2019 listed symptoms are not supported by the record and/or are not akin to those envisioned in situations of total occupational and social impairment for VA rating purposes. Rather, the overall evidence shows that the Veteran consistently suffers, at the very most, from occupational and social impairment, with deficiencies in most areas, as a result of his PTSD. Turning to post-service medical records dated in 2018 and 2019, mental status examinations revealed that the Veteran was pleasant, appropriately well-groomed and had good eye contact. His affect and mood were reported as anxious, but also as pleasant, calm, and appropriate. The Veteran was reported as having normal motor activity, with clear speech. No memory problems were noted. The Veteran’s attention and judgment were found to be age appropriate. His impulse control within normal limits. He was noted as having logical and coherent thought content. The Veteran denied hallucinations. He also denied suicidal or homicidal thoughts. Socially, the Veteran reported that his current living situation was adequate, as he lived in an apartment alone. He indicated that his social support were his four adult children, his family, and his friends. During his April 2019 examination, he reported that his relationship to others included increasing dependency upon his niece, neighbors, and home health care aid for use of cell phone and other communication devices, community mobility, shopping and food preparation and cleanup, showering, dressing and hygiene, and health and medication management. The Veteran reported that he is wheelchair bound but had recently acquired a self-propelled wheelchair. Viewing the totality of the evidence, the Board finds that the Veteran currently does not meet the criteria for the assignment of a 100 percent disability rating. He has consistently been noted by his regular treatment providers to be pleasant and appropriately well-groomed. His thought processes were goal-related and logical, without any gross impairment. There was no evidence of grossly inappropriate behavior. He consistently denied delusions and hallucinations. There is no evidence to suggest that the Veteran has ever had problems remembering his own name, much less the names of others. He could verbalize his problems to his health care providers and has asked for help, demonstrating insight. He continued outpatient psychiatric treatment/individual counseling for his PTSD and also continued to use psychotropic medication, reflective of insight. One record in the claims file reveals the Veteran calling for a referral/ordering transportation that could accommodate his wheelchair for him to attend his mental health appointments. The Veteran was determined to manage his own financial affairs. Additionally, it notable the lack of supportive evidence of systems found in the April 2019 examination report, such as suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired judgment; obsessional rituals that interfered with routine activities; and spatial disorientation. Viewing the Veteran’s mental status examinations in conjunction with his overall behavior, his disability picture does not rise to a level of causing total occupational and social impairment. The September 2018 VA examination report and the 2018/2019 post-service medical records are more probative and persuasive in their analysis of this claim than the April 2019 examination report for the reasons set forth above. From September 2018, his mental health symptoms are of a similar type, severity, duration, and frequency as those associated with a 70 percent rating. Therefore, the Board finds that the preponderance of the evidence is against the assignment of a 100 percent disability rating. The appeal is denied. 2. Entitlement to a TDIU prior to September 5, 2018 In a September 2018 rating decision, the RO increased the Veteran’s service-connected PTSD disability rating from 30 percent to 70 percent. Thereafter, in an October 2019 rating decision, the RO granted individual unemployability effective September 5, 2018, based exclusively upon the Veteran’s service-connected PTSD’s 70 percent disability rating. Prior to the Veteran’s increased rating, the Veteran was service connected on a schedular basis for three (3) separate medical conditions. Occupationally, he states that he has been unable to work full-time since 2013 and became too disabled to work in 2014. He essentially argues that the TDIU granted by the RO should be made effective in 2014, as that is when he believes his inability to work was caused by his service-connected disabilities. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if (1) the veteran is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability/disabilities, provided that (2) the veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of a service-connected disability or disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. § 3.321. The central inquiry of a TDIU is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Factors to be considered are the veteran’s education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. In terms of disabilities, the Veteran was service-connected prior to September 2018 for (1) PTSD at 30 percent, (2) chondromalacia of the right knee at 10 percent, and (3) a scar status-post right knee surgery assigned a noncompensable disability rating. Combining the individual disability ratings set forth above, the Veteran’s overall disability rating became 40 percent from January 30, 2012 until September 5, 2018. Therefore, he did not meet the criteria for consideration of the assignment of a TDIU. Nevertheless, the Board will address whether referral for extraschedular consideration is warranted under 38 C.F.R. § 4.16(b). Significantly, in his July 2019 TDIU application, the Veteran did not provide any employment information relating to the previous five years he had worked (i.e., from approximately 2009 to 2014). He listed making $26,000 in 2012, and that he last worked full time in June 2013. He also noted he became too disabled to work in 2014 but provided no additional employment information. Thus, VA is unable to determine the duration of the Veteran’s pre-2014 employment and documentation as to reason for him leaving prior employment. Also, he noted he completed 4 years of high school, but denied any additional training or education prior to becoming too disabled to work. Of the evidence contained in the claims file, the Veteran was afforded an October 2012 VA examination of the right knee and lower leg conditions, at which time his knee disability was not found to impact his ability to work. That same month, he was afforded a PTSD VA examination at which time his PTSD was found to result in occupational and social impairment due to mild or transient symptoms that decreased work efficiency and the ability to control occupational tasks only during periods of significant stress. During his November 2014 PTSD VA examination, the Veteran was also found to suffer from occupational and social impairment due to mild or transient symptoms that decreased work efficiency and the ability to control occupational tasks only during periods of significant stress. In terms of the Veteran’s scar, he was afforded a VA examination in May 2019, at which time his examiner opined that his scar did not result in any functional impact on his ability to work. None of the pre-2018 examination reports or medical records reflect findings that the Veteran’s pre-2018 service-connected disabilities had an impact on his ability to work. Viewing the evidence in total, the preponderance of the evidence shows that the Veteran could perform the physical and mental acts required by employment. In other words, prior to September 2018, the Veteran’s service-connected disabilities alone did not render him unable to secure and follow substantially gainful employment. Although the Veteran was unemployed in 2014, he did not meet the disability percentage rating criteria for consideration of the assignment of a TDIU. More importantly, the dispositive issue in this case is whether he can perform the physical and mental acts required by employment, not whether he could find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Although the Veteran sincerely believes his service-connected disabilities rendered him unemployable prior to 2018, he is not competent to determine whether he met the criteria for a TDIU. Regardless, the decision of whether a veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that “applicable regulations place responsibility for the ultimate TDIU determination on the VA [adjudicator], not a medical examiner.”) The Board has the ultimate authority to decide whether the Veteran is employable and finds that the most probative evidence shows that despite his service-connected disabilities, the Veteran was able to obtain and follow substantially gainful employment prior to September 5, 2018. (Continued on the next page)   The Veteran’s claim for TDIU is not referred for extraschedular consideration under 38 C.F.R. § 4.16(b). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talpins, Patricia The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.